Wednesday

The right to be heard is a valuable right. What makes it valuable is both that there is a point to making one's views known and, further, that making one's views known makes a difference. It matters to me that I can speak out on political questions. It matters also, and probably more, if what I say leads to the changes I favour. Correlatively it is true both that I do not want to be silenced and that I do not want the statement of my views to be ineffectual. As a further general point it is clear that there will always be some issues on which it is more important that I be allowed to speak and that what I say about these issues carries weight in determining outcomes. Those are the issues that matter to me, and the more they matter the more important it is that I have the freedom to speak about them and be heard. On one account since children's views should not be ‘authoritative’, that is determinative of what is done, they have only a ‘consultative’ role (Brighouse 2003). They may influence an outcome by, most obviously, providing those who do make the decisions affecting a child's interests with a clearer picture of what in fact is in those interests. On another account encouraging and according a weight to the expression of children's views—even where this is unlikely to affect outcomes in line with the views' content—is valuable just because the child is capable of expressing a view and deserves to be listened to (Archard and Skivenes 2009).

How is it with the child's right to be heard? It will be important for the child to be listened to. But it is also important that the child is heard in the sense that her views are given due consideration and may influence what is done. Note that the child's right to be heard on matters affecting its own interests is a substitute for the liberty right to make one's own choices. The right to be heard is only a right to have the opportunity to influence the person who will otherwise choose for the child. The power to make those choices resides with the adult guardian or representative of the child. All the child retains is the right to try to motivate that adult to choose as the child herself would choose if she was allowed to.

Article 12.1 of the United Nations Convention on the Rights of the Child not only accords the child the right freely to express its views on matters affecting the child. It also, and crucially, gives the child an assurance that these views will be given ‘due weight in accordance with the age and maturity of the child’. Great emphasis is now placed on what are termed a child's ‘participation rights’ as opposed to his or her ‘protection rights’. The latter, as the name suggests, protect the child from violent, abusive, cruel or exploitative treatment.

‘Participation rights’ by contrast, give the child some entitlement to be the agents of their own lives. Article 12.1 provides a crucial underpinning justification for such rights. There are problems in understanding how practically to implement such rights (Ang et al, 2006). There are also theoretical issues in making precise sense of what a right such as that enshrined in Article 12.1 might mean. The celebrated British legal judgement in the Gillick case (Gillick [1986]) provides a useful guide. This judgement has been extensively if not exhaustively discussed, and it has also been highly influential in matters relating to the consent of children to medical treatment.

The Gillick judgement arose from the dissatisfaction of a mother with the failure of her local health authority to withdraw an advisory circular to the area's doctors. This advised doctors that they could counsel and inform young girls under the age of 16 about sexual matters as well as provide them with contraception, and that they could do this without the consent of the child's parents. The mother, Victoria Gillick, went to court to have the circular declared unlawful. The final judgement by the British House of Lords was that the circular was not unlawful. A key issue, relevant to the present discussion, concerned the proper relationship between the child's right to decide for itself and the parent's right to decide for the child.

In deciding in favour of the health authority one of the Law Lords, Lord Scarman, made a statement crucial to his finding and one that has subsequently been much cited. It is worth reproducing:

The underlying principle of the law … is that parental right yields to the child's right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision.

I would hold that as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him to understand fully what is proposed. (Gillick [1986] 186, 188–9)

Let me now discuss various issues that arise. First, what does it mean for a child to get to a particular point in their development? On what could be called the threshold interpretation once a child has achieved a certain level of competence her views as to what shall happen to her have a determinate weight, either amounting to a liberty right of choice (on a strong version) or (on a weak version) being counted in the balance against her parents' views and the state's judgement of her best interests. On what could be called the proportionality interpretation the child's views progressively increase in weight as she gains a greater competence to choose for herself. They increase up to the acquisition of a full liberty right of choice.

Second, on either the threshold or the proportionality account we need a measure of that ability that marks the threshold or is simply progressively acquired. How much intelligence and understanding, for instance, is sufficient? In the first place this measure must be taken independently of any judgement of what is in the child's best interest. That a child would choose what is taken to be in her best interests is at most evidence that she does have sufficient intelligence and understanding of the relevant issue. Her making such a choice is not a necessary condition of her having the requisite ability. Similarly the making by a child of a poor choice is not conclusive evidence of her general incapacity to choose for herself. Wise adults can occasionally make stupid decisions just as fools sometimes get it right.

In the Gillick judgement Scarman required of the child that she manifest an understanding of the ‘nature’ of the contraceptive advice offered and ‘also have a sufficient maturity to understand what is involved’ (Gillick [1986] 189). We can distinguish here a number of possible elements. There is, first, knowledge of certain facts. A child, for instance, knows that a contraceptive acts to prevent conception that might otherwise result from sexual intercourse. Another child, by contrast, could simply be ignorant of or unable to comprehend the facts of reproduction. There is, second, an understanding of what follows for the child from an act or its omission. Thus failure to use a contraceptive could lead a young person who had sexual intercourse to become pregnant. These two understandings together constitute knowledge of the ‘nature’ of the act. Finally there is what arguably comes with ‘maturity’ which is the ability to appreciate the significance both of an act or its omission and of the relevant consequences. It is one thing to know what it is to become pregnant, and another to understand what that means. This latter understanding involves realising that pregnancy brings in its wake physical changes, that any resultant birth leaves a young person with a child to care for, and so on. Scarman even insisted that the child would need to have an appreciation of the ‘moral and family’ questions involved.

Third, it is important in measuring a child's competence against that in respect of which he or she is expressing a view to distinguish between the complexity and the seriousness of the matter. A simple choice—for instance that between only two options such as whether or not to have a life-saving operation—may nevertheless be portentous, having enormous and far-reaching consequences. It may thus require much greater appreciation of what is involved than a more complex decision, one that ranges over many possibilities. Yet the latter kind of choice—consider choosing a five-course meal from a very large menu—is far less serious in its consequences. In short, the difficulty or complexity of a choice should not be confused with its importance or significance for the child.

Fourth, the English courts at least have detected a fundamental asymmetry between refusing and choosing to have treatment. A competent adult has a right both to choose to have treatment and to refuse it. Should this not also be the case with a competent child? A 15-year-old who wants to have a particular operation against her parents' wishes and even contrary to the best judgement of her doctors may be judged competent and thus have her wishes respected. However the English courts in a series of judgements after Gillick have argued that matters are somehow different when it is a case of a child refusing an operation.

Of course there is no inconsistency if a refusal requires a greater degree of understanding and appreciation of the issues than a positive acceptance. But where the choice is a simple disjunction it is hard to see how this can be the case. Are not the issues at stake the same for both disjuncts? If the courts believe that an obligation to act in the best interests of the child trumps one to respect the wishes of a competent child it needs to be shown why this obligation does not have force in all circumstances. Why would a court not deny treatment to a child it does not believe in her best interests when it judges her competent to choose? If a child is competent then she is in all significant and relevant respects the equal of an adult and should be able both to choose and to refuse treatment.

Three final comments on the child's right to choose are in order. First, what is deemed to be in the child's best interests is evidence for but not finally determinative of a judgement as to the competence of the child. Nevertheless balancing a child's right to be heard against a child's right to have its best interests promoted is difficult. Second, it is arguably enough to show a child's competence that a child understands the nature of the act. After all no more is needed for an adult's consent to be informed. In the law of contract adults need only to know what they are signing up to. They do not need a full appreciation of the contract's significance and of its import for their future lives. Third, Gillick competence as specified is very demanding. Indeed there are many adults who in making their choices fail to display the maturity and ‘understanding of what is involved’ that is dictated as necessary for the child. Why then should a child have to display a competence that many adults lack both in general and in particular cases?

Children are young human beings. Some children are very young human beings. As human beings children evidently have a certain moral status. There are things that should not be done to them for the simple reason that they are human. At the same time children are different from adult human beings and it seems reasonable to think that there are things children may not do that adults are permitted to do. In the majority of jurisdictions, for instance, children are not allowed to vote, to marry, to buy alcohol, to have sex, or to engage in paid employment. What makes children a special case for philosophical consideration is this combination of their humanity and their youth, or, more exactly, what is thought to be associated with their youth. One very obvious way in which the question of what children are entitled to do or to be or to have is raised is by asking, Do children have rights? If so, do they have all the rights that adults have and do they have rights that adults do not have? If they do not have rights how do we ensure that they are treated in the morally right way? Most jurisdictions accord children legal rights. Most countries—though not the United States of America—have ratified the United Nations Convention on the Rights of the Child which was first adopted in 1989. The Convention accords to children a wide range of rights including, most centrally, the right to have their ‘best interests’ be ‘a primary consideration’ in all actions concerning them (Article 3), the ‘inherent right to life’ (Article 6), and the right of a child “who is capable of forming his or her own views … to express these views freely in all matters affecting the child” (Article 12) (United Nations 1989). However it is normal to distinguish between ‘positive’ rights, those that are recognised in law, and ‘moral’ rights, those that are recognised by some moral theory. That children have ‘positive’ rights does not then settle the question of whether they do or should have moral rights. However there are at least good political reasons why one might think that the UNCRC provides an exemplary statement – in the language of positive rights – of how children should be treated and regarded. Nevertheless the idea of children as rights holders has been subject to different kinds of philosophical criticism At the same time there has been philosophical consideration of what kinds of rights children have if they do have any rights at all. The various debates shed light on both the nature and value of rights, and on the moral status of children.

These matters, to be considered below, need also to be seen as closely tied to at least two other philosophical questions: what is childhood? (See the entry on childhood.) And, how do the putative rights of children stand in relation to the rights of those adults who, arguably, have rights over children? The first question is considered at length in Part I of Archard (2015). The second question broaches the issues of parental rights and responsibilities. (See the entry on procreation and parenthood.)

Excerpt of material borrowed from Jennifer Baker PhD’s article on this case of child abuse and deprivation:

“Barbara Bennett Woodhouse is theL. Q. C. Lamar Chair in Law at Emory and serves as faculty advisor for the Barton Child Law and Policy Clinic.

She is one of our most eminent scholars on the topic of children’s rights. She has developed an account of five basic human rights that represent what other experts agree is crucial to the well-being of children. (Please read her excellent book on children’s rights, here(link is external).)

These are: privacy rights. While we are familiar with how these work in regard to adult lives, for children, “the basic unit of privacy is not the individual but the relationship between the child and the caregiver. “ Children, in other words, need us to respect their relationships and their capacities to form relationships.

Agency rights. Children develop voices and they have agency. They need to have a voice in matters that affect them, even if “they are not ready to take responsibility for the ultimate choice.” Children are both citizens-in-training and valuable in their own right, as they are.

Equality. Children, dependent on communities as they are, deserve access to the necessities of life that other children in the community are given.

Dignity. Children are their own persons, and “laws that penalized innocent children for the sins of theirparents,” as existed in the Victorian era, have come to look “inhumane.”

And finally, protection rights. Civilization depends on the weak being protected from the strong. Situations where children are put in danger of harm violate these children’s rights.

Woodhouse explains that children’s rights flow “from the same set of basic values” that give adults rights. We cannot, in other words, pretend adult rights are on some firmer basis than those of children.”

Do you agree?

Let us know: MyAdvocateCenter.com

Use your voice,

Deb Beacham

Children affected by divorce and/or separation fare worse, on average, on nearly every measure of health and emotional well-being including a greater risk of academic problems, alcohol and drug use, poor social skills, depression and suicide, delinquency and incarceration, and poorer physical health and early mortality. The reason for all this has much to do with the fact that one of the two most important people in a child’s life is often relegated to the role of an infrequent visitor.

SHARE YOUR STORY

We always encourage all parents and extended family to share experiences of Family Court horrors, or Parental Alienation and its impact on you, your children and family. That way the ripple effect of the information and experiences shared will create positive change for other people who are affected or who may be affected in the future.

Comment anonymously, call yourself whatever you want. Email addresses are strictly confidential, and providing one is optional (but will allow you to be notified of others’ responses and to dialogue immediately if you wish). This blog was viewed over a half a million times. For the public to be aware of procedural abuses, it has to hear about them. The blog author’s own story is here. Civility is the only constraint upon your speech.

3d DCA Watch -- Bye Bye Bunker Edition!
-
So one time in bunker camp the Resplendently Robed Ones™ decided to pretty
much chuck the month of December and go explore the beautiful environs of *Centra...

Stop Court-Ordered Parental Alienation

February 23rd

Obnoxious ‘Renegade’ Justice ~ Family Courts

The abuses of parents and children by Family Courts, social workers, and family law attorneys have harmed parents and children for far too long. We intend to end that abuse

Family court is designed by its makers to be probably the most dangerous life event parents and children can endure. It enables and profits from every inhumane instinct known to man—greed, hate, resentment, fear—resulting in abundant cash flow for the divorce industry and a fallout of parent and children’s misery.

And behind the curtain of this machine of misery we’ve uncovered its cause—the multi-billion dollar divorce industry, populated by judges, attorneys, and a machinery of tax-dollar fed “judicial administrators,” social workers that George Orwell would marvel at.

We’ve been delivering that message kindly for years now, yet the tide keeps rising on families in crisis. We’ve appealed to the county courts, state and local politicians, state judicial oversight bodies, United States Representatives, and just plain old human dignity, but the harassment and abuse of parents and children has only increased. A resort to federal court intervention in the widespread criminal collusion in state government was the next logical step.

It’s time to recognize Family Court for what it is—a corporate crime ring raiding parents and children of financial and psychological well-being, and devouring our children’s futures. And its not just divorce lawyers—its judges, “judicial administrators,” psychologists, cops and prosecutors—people we should be able to trust—in a modern day criminal cabal using county courtrooms and sheriff’s deputies as the machinery of organized crime.

Since state officials’ hands are too deep into the cookie jar to stop their own abuse, we’re seeking the assistance of federal oversight.

The present-day suffering of so many parents and children has and is being wrought within a larger system characterized by a widespread institutional failure of—indeed contempt for—the rule of law.

Family courts, the legal community, professional institutions such as the state bar, psychology boards, and criminal justice institutions have in the recent decade gradually combined to cultivate a joint enterprise forum in which widespread “family practice” exceptions to the rule of law are not only tolerated, but increasingly encouraged. Professional behavior that would only a few years ago be recognized as unethical, illegal, or otherwise intolerable by American legal, psychological, law enforcement, or social work professionals has increasingly achieved acceptance—indeed applause—from institutional interests which benefit from a joint enterprise enforcing the unwritten law of “who you know is more important than what you know.

In this lawless behavior’s most crass infestation, Family Court Judges are regularly heard to announce, in open court, “I am the law” and proceed to act accordingly with impunity, indifference, and without shame.

The effect on parents and children seeking social support within this coalescing “family law” forum has not been as advertised by courts and professionals—a new healing—but instead a new affliction: an ‘imposed disability’ of de rigueur deprivation of fundamental rights in the name of ‘therapeutic jurisprudence’ funded by converting college funds into a bloated ministry of the Bar Associations leaving families and their children with mere crumbs of their own success.

Many family court judges regularly administer such obnoxious ‘renegade’ justice every day, in open defiance of the rule of law. ‘Sober as a judge’ these days has a whole new meaning.

We need reform toward a more humane family dispute resolution solution

Many of our members are mothers, fathers, and children who have withstood abundant hardship resulting from the current practices of what is generally described as the “Family Law Community.”

These injuries and insults include fraudulent, inefficient, harmful, and even dangerous services; an institutionalized culture of indifference to “clearly-established” liberties; insults to the autonomy and dignity of parents and children; extortion, robbery, abuse, and more, delivered at the hands of eager operators within the divorce industry. ~~ CPRW Vid1 - 2016

World4Justice2016

It’s just not possible that intelligent lawyers like judges don’t understand exactly what goes on in their courtrooms, yet they allow it to continue.

This judicial collusion is far more serious crime than even the fraud of divorce attorneys themselves.

We need reform toward a more humane family dispute resolution solution. They’ve treated us as enemies of the state. When we thought we’d be welcomed, or at least heard, we’ve instead become targets of prosecution and terrorist threats. They've assaulted us, harassed our members including threatening “gun cock” and death threat late night phone calls, attacked our businesses, professional licenses, and threatened to jail and extort us with further crime.

It’s outrageous that our own government allows this to happen, and we’re asking the federal court to protect our members as we pursue the civil and criminal charges against the courts. A complete set of filings and exhibits is available from CCFC’s Facebook page at www.Facebook.com/ccfconline ~~ Grandparents and Grandkids World4Justice2016 ~ GR Vid2 -- www.facebook.com/Grandparents4Justice

Jury trials have been unlawfully eliminated as an option in family court by unelected adminstrators, leaving judges to do whatever they want and control the cases completely. The checks and balances of the judicial system have been removed and profit motives win by the gravity of money over decades.

Freedom of speech in the United States

“Will of the people the only legitimate foundation of any government, protect its free expression, our first object.” ~ Thomas Jefferson

"No man is good enough to govern another man without the other's consent."

“There are subtle ways and overt ways of alienating a child from a parent, but either way it’s evil”

Almost always, the creative dedicated minority has made the world better.

Never succumb to the temptation of bitterness.

Stand up for Zoraya

Stand Up For Zoraya

Internet Defense League

Collaborative Family Law

google-site-verification: googlebeb56b04a455e344.html

Strengthening Father-Child Relationships

Posting Rules

ADVISORY: Users are solely responsible for opinions they post here and for following agreed-upon rules of civility. Posts and comments do not reflect the views of this site. Posts and comments are automatically checked for inappropriate language, but readers might find some comments offensive or inaccurate. If you believe a comment violates our rules, click the "Flag as offensive" link below the comment.

By using various interactive features to post content, you are participating in a community intended for all of our users. In general, we reserve the right to remove any content posted on our site at any time for any reason. Without limiting our right to remove content, we have attempted to provide guidelines to those posting on our site. As such, if your behavior becomes a problem for the site or for other users, we may, in our discretion and without warning, ban you. Posting Rules When using this blog, please do not post material that:

§Contains vulgar, profane, abusive, racist or hateful language or expressions, epithets or slurs, text, photographs or illustrations in poor taste, or attacks of a personal, racial or religious nature.

§Discriminates on the grounds of race, religion, national origin, gender, age, marital status, sexual orientation or disability, or refers to such matters in any manner prohibited by law.

§Violates or inappropriately encourages the violation of any municipal, state, federal or international law, rule, regulation or ordinance.

§Interferes with any third party's uninterrupted use of this blog.

§Advertises, promotes or offers to trade any goods or services, except in areas specifically designated for such purpose.

§Includes copyrighted or other proprietary material of any kind without the express permission of the owner of that material.

§Uses or attempts to use another's identity, account, password, service or system except as expressly permitted by the Terms of Service of Google's Blogger.

§Contains or links to viruses or other harmful, disruptive or destructive files.

§disrupts, interferes with, or otherwise harms or violates the security of StAugustine.com, or any services, system resources, accounts, passwords, servers or networks connected to or accessible through StAugustine.com or affiliated or linked sites.

§"flames" any individual or entity (e.g., sends repeated messages related to another user and/or makes derogatory or offensive comments about another individual)